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Kidushin, 48

1) CANCELING SOMEONE ELSE'S LOAN

QUESTION: The Gemara says that when a lender sells a Shtar Chov (document of debt) to his friend, and then he (the original lender) forgives the debt, the debt is canceled. Moreover, even if he dies after selling the Shtar Chov, his heir may forgive the debt.

Once the Gemara assumes that it is possible to sell a Shtar Chov, we should consider it the total possession of the buyer. Why, then, can the original lender effectively forgive and cancel the debt? Since he sold the deed of debt, he has no rights to it anymore, and thus he should be no different than anyone else who has no power to affect the debt in any way!

ANSWERS: There are a number of approaches among the Acharonim on this issue.

(a) TOSFOS (DH ha'Mocher) is of the opinion that the entire institution of Kinyan with regard to a Shtar is only mid'Rabanan. Since there is no inherent worth to the Shtar besides its ability to be used as a proof, the Shtar has no intrinsic value and cannot be transferred through a Kinyan. Since the Kinyan is only mid'Rabanan, selling the Shtar does not remove the lender's power altogether, and he still retains the ability to forgive and cancel the debt.

(b) The RITVA cites RABEINU TAM who differentiates between the two types of Shi'abud that occur with every loan. One type of Shi'abud is a "Shi'abud ha'Guf," while the other is a "Shi'abud Nechasim." When a loan takes place, the borrower becomes obligated to ensure that the loan is paid back; he must do everything within his power to ensure that it is paid back. This is called his "Shi'abud ha'Guf." In addition to this Shi'abud, all of the possessions of the borrower become security for the loan. His possessions are considered like an Arev, a guarantor, for the loan and become Meshu'abad to the loan.

The Shi'abud on the possessions (Shi'abud Nechasim) can be transferred through the normal means of a Kinyan (just like the possessions themselves can be transferred through a Kinyan). In contrast, the Shi'abud ha'Guf is not a tangible item and thus cannot be acquired or transferred through a Kinyan. It follows that the sale of a Shtar Chov only affects the Shi'abud Nechasim of that loan, and only the ownership of that Shi'abud has been transferred to the buyer. The Shi'abud ha'Guf, though, remains in the possession of the original lender, since a Kinyan cannot take effect on such an item. The lender, therefore, can effectively cancel that Shi'abud. Once the Shi'abud ha'Guf no longer exists, the Shi'abud Nechasim disappears automatically. Since the possessions only serve as an Arev to the Shi'abud ha'Guf, once the Shi'abud ha'Guf no longer exists, there is no Shi'abud for which the possessions can serve as an Arev! (See KETZOS HA'CHOSHEN 66:37.)

(c) The RA'AVAD (Hilchos Mechirah 6) has a different understanding of why the original lender is able to cancel the debt after he has sold the Shtar Chov to someone else. The Ra'avad explains that when the buyer comes to collect the loan written in the Shtar, he is not collecting his own personal loan, as if the borrower had borrowed money directly from him. Rather, he is using the rights of the original lender to collect (and to keep) the money of that lender, whose power (with regard to this loan) he has acquired. Accordingly, the Ra'avad explains, the buyer can collect the loan only as long as the original lender still retains his power. If, however, the lender forgave the loan, we now view the buyer as coming to collect the loan by virtue of his own rights, in which case the borrower can claim that he was never Mesha'abed himself directly to the person who bought the Shtar Chov, and that he is willing to deal only with the party to whom he was Mesha'abed himself. (This also appears to be the view of RASHI (DH Mochel) in our Sugya.)

The view of the Ra'avad, and that of Rabeinu Tam, can help us understand the difference that the Gemara makes between two types of loans. When referring to a Milvah b'Shtar, a debt written in a contract, the Gemara says that perhaps everyone agrees that "words can be acquired through Mesirah," and the argument revolves around Shmuel's Halachah -- whether or not Mechilah can be done after the sale of a Shtar.

When discussing a Milvah Al Peh (a debt not written in a contract, but only agreed to verbally), however, the Gemara just mentions the Machlokes between Rebbi and the Chachamim as depending on whether Ma'amad Sheloshtan applies to a loan or not. The Rishonim (Tosfos, Ritva, and others) infer from here that even though Mechilah can be done following the sale of a Shtar, it cannot be done after a Kinyan of "Ma'amad Sheloshtan" (see Insights to Gitin 13:2).

According to the explanation of RABEINU TAM and the explanation of the RA'AVAD, the difference between the two types of loans is clear. As we explained above, the sale of a Shtar is a transaction between the lender and the buyer exclusively, and the borrower has no role in the Kinyan at all. It is merely a transfer of power from the lender to the buyer. Therefore, only a Shi'abud Nechasim exists, according to Rabeinu Tam, and, according to the reasoning of the Ra'avad, the borrower has no direct Shi'abud to the buyer. The Kinyan of Ma'amad Sheloshtan, though, includes the direct involvement of the borrower. Since his presence is necessary for the Kinyan to take effect, we view it as though he is now directly obligating himself -- with a Shi'abud ha'Guf -- to the buyer of the loan. Therefore, when the original lender forgives the loan, he is only canceling the Shi'abud ha'Guf to himself, but that is not enough to free the borrower from his obligation to the buyer, since he now has a new, direct Shi'abud ha'Guf to the new owner of the loan. In addition, as a result of the Kinyan of Ma'amad Sheloshtan, the new owner of the loan is not merely acting in the place of the original lender when he collects the loan, but he is acting independently on his own behalf, for what is now considered his own loan to the borrower. (See RITVA.)

How, though, are we to understand the difference between selling a Shtar and making a Kinyan of Ma'amad Sheloshtan according to TOSFOS? Tosfos explains that the ability of the original lender to forgive the debt is based on the fact that the sale of a Shtar is only mid'Rabanan. The Gemara in Gitin (14a), however, states that the Kinyan of Ma'amad Sheloshtan is also only mid'Rabanan! Why, then, should there be a difference between selling a Shtar and making a Kinyan of Ma'amad Sheloshtan?

The PNEI YEHOSHUA explains that since the Kinyan of Ma'amad Sheloshtan is made in the presence of the borrower and with his consent, it has the power of a Kinyan *d'Oraisa* (see there). (A. Kronengold)

QUESTION: The Gemara cites a Beraisa in which Rebbi Meir and the Rabanan argue concerning a case in which a woman gives gold to a man and asks him to make jewelry for her, and in return for his labor she will become Mekudeshes to him. Rebbi Meir says that once he has made the jewelry, she becomes Mekudeshes. The Rabanan say that she is not Mekudeshes until the jewelry is given to her. The Gemara suggests that the Machlokes between Rebbi Meir and the Rabanan is whether or not a loan can be used to effect Kidushin. In this particular case, the loan is the wage that the woman owes to the man for the labor that he did for her. Why, then, is it necessary for the Mekadesh to give the actual jewelry to her, into her hand? The gold does not belong to him, for it was always the property of the woman. The only item that he owns, so to speak, which he is giving her is the entitlement that he has to collect money from her for his labor. But this "item," the debt that he is forgiving, seems to have no connection with the object itself! It is entirely independent of the object! Why, then, do the Rabanan say that she becomes Mekudeshes when he gives her the jewelry?

ANSWER: The RASHBA explains that even though the money being used to be Mekadesh the woman is not the gold but the debt that she owes to him, the debt does not take effect until the gold is returned to her. Since the original obligation of the woman to pay for the labor is only on condition that she later receives her gold back, we do not view the debt as taking effect until the gold is returned. At that time, the debt takes effect retroactively from the time that the man began work, and it is therefore considered a loan (Milvah).

The Gemara does not require that the gold be given because of its own worth, but rather in order to create the debt with which the man is being Mekadesh the woman (by forgiving it). (See PNEI YEHOSHUA who uses this explanation to explain the words of RASHI, DH Ela d'Havi Milvah l'Mafrei'a.)

48b